NVLSA Questions asked of Charlie Wilson and Patrick Lowe, Napa County Planning Director and Assistant Director, Dec. 9, 2002
1. Takings - Is any change being made to the ordinance to accommodate Supervisor Luce's concerns about taking too much of someone's property without compensation? Is any such language being prepared for the Supervisors to vote on?
Their answer: No. That would be too difficult to determine now. There are too many questions about how to figure it. Would it be the percentage of the total area? The percentage of the developable area? The percentage increase in the setback over the present setback? That is something for the County Counsel to work out later.
2. Map - Is the map showing the various stream classes and the affected properties going to be ready before the ordinance is voted on? Could a partial map be made ready to at least call out all the class 1 and class 2 streams, on the assumption that all the rest would be class 3?
Their answer: The map could take a year or more. Perhaps a rudimentary map could be displayed, but it would mislead some people into thinking they are not affected when in fact they will be affected, as more class 2 and class 3 streams are added later.
3. Limiting Factors Analysis - Is Ed Schulz correct? Was the RWQCB/Coastal Conservancy study by Stillwater Sciences not considered in preparing this ordinance? Why not? The Limiting Factors Analysis Recommendations section says the County Planning Department will have the tools they need to make science-based decisions as of June 2003. Why not wait for those topographic maps and watershed modeling products?
Their answer: No, he is not correct. It was considered. Jones and Stokes are very familiar with it. Mike Napolitano, who is with the agency (SFWQCB) that commissioned it, is in favor of this ordinance. We should read his letter to the Board (available from the Clerk of the Board)
What about the LIDAR study, finished in Sept 2003? The application for the money to fund it indicates existing maps are inaccurate and misleading.
(We didn't get around to asking this one, but this study is touted as a source of very precise mapping tools that would allow all the affected streams and their setbacks to be accurately defined)
4. Base line data - Is there any base line data on the watershed health factors this ordinance hopes to improve? What are those factors? Where are the data? How will we know if the ordinance actually results in any improvement? Shouldn't we establish that base line information before we go off half-cocked?
Their answer: Yes, there is base line data. It is in the technical report. They were fuzzy on what the data are, or how we will verify that any improvement results from enactment of this ordinance. The Emergency Ordinance has not been in place long enough to produce any measurable improvement. The Setback Ordinance would likely have to be monitored for ten years or so to document any improvement resulting from its enforcement.
5. Financial Analysis - Is there any information available on the financial impact of this ordinance? Every ballot measure requires at least a cursory analysis of financial impact. Couldn't a similar analysis be done on this ordinance? Why don't we need that information?
Their answer: There is no financial analysis available. No one has thought to request one, and anyway, it is not required. The Supervisors chose not to order a financial analysis on the Sierra Club Timber Initiative, which will go on the ballot in March 2004, so they will not likely order one on this ordinance, either.
6. a. Is the replant exemption really a total exemption, or just a conditional waiver that must be applied for? For instance, does the replant exemption mean that a grower who is replanting can simply know that he is exempt, and therefore does not need to make application to you to determine whether his replant is exempt?
b. Is the same thing true for the residential exemption and the small project exemption?
c. If any difference exists between the two exemptions, then why are residential users being discriminated against?
d. Isn't it deceptive to call a conditional waiver an exemption, when it is really not an exemption?
Their answer: a. First, the replant exemption is only temporary, until the Conservation Regulation rewrite. But in the meantime, if the vineyard is on slope of 5% or greater, an erosion control plan (standard measures plan if less than 15% slope) must be submitted. Upon receipt of that plan, staff would review the project to verify that it is really exempt. If it is on slope less than 5%, no plan need be submitted. In that case, no staff review is required to exercise the exemption.
b. Yes, except in the case of the residential exemption, where building plans must be submitted for a building permit, regardless of slope, and staff would review it for appropriateness of the exemption at that time.
c. (Not asked, since no material difference was acknowledged).
d. (not asked)
7. Flooding - Doesn't returning the watershed to "a more natural state" or to "conditions of an earlier time" mean returning it to a state of more frequent flooding? Have the impacts of that flooding been considered?
Their answer: They don't agree that returning the river to a more natural condition would necessarily result in more frequent flooding. Large Woody debris (fallen trees) would not be inserted in places where it might cause flooding.
8. Measure J - Have you seen a legal opinion on whether or not measure J requires a vote of the people on this ordinance? Can we see it?
Their answer: They don't see any connection between this ordinance and Measure J. Measure J restricts the conversion of AWOS (Agriculture, watershed, open space) land to other uses. First, they don't acknowledge that this ordinance changes any land to open space use, but even if it does, conversion of Ag land to Open Space would not trigger Measure J.
9. Moratorium - Can the Supervisors choose to simply let the emergency ordinance expire?
Their answer: Yes
10. New residential exemption - Patrick Lowe was quoted in Sunday's Register as saying that for residences there is almost no change from what is on the books today. If so, then why do we need this ordinance to apply to residences at all? Exactly what are those changes, and how do they justify passing this ordinance?
Their answer: (double talk?) They must put the rules into this ordinance because the old ordinance will cease to exist, and the old stream definitions will cease to exist. The changes are all related to the definitions of streams. The old ordinance covered only "blue line streams" more than four feet deep, whereas the new ordinance covers every kind of stream.
The old setbacks are 35 feet on portions of 46 streams listed by name in the old ordinance. All of the new Class 1 streams are included in that old list of 46 streams. Most Class 2 streams are also in that list of 46. Some other streams (less than 4 feet deep) will be designated Class 2 based on biological criteria. (Benthic macro-invertebrates or non-fish aquatic vertebrates)
Note from NVLSA member Jeff Baier: The problem is that the 1991 regulations only apply to major streams, those being solid line or dash and 3 dots on the USGS maps and watercourses greater than 4 feet deep. The proposed ordinance will still cover a much greater number of watercourses using the new stream definitions, so in a way this "General Residential Exemption" is nothing but a cruel hoax since the setbacks will still be 50 to 150 feet for most watercourses.
During a break at the Board meeting last week I pointed this out to Patrick Lowe. Mel Varrelman overheard me, and without anymore discussion, He said that he would have the County Counsel change the wording to make the old stream definitions apply for the "General Residential Exemption"
11. Cutting trees on ridgeline - Why is this restriction in a stream setback ordinance?
Their answer: It was in the old ordinance. They don't know why it was there, but they can't take it out.
12. What does it cost to determine whether a stream is a class 3 rather than a class 2?
Their answer: From $500 or $600 on up, depending on the distance along the stream being classified. (This figure was revised upward to "$1,000 or more" at a subsequent public hearing.)
13. This is touted as just a temporary ordinance, the implication being that we should not be too concerned about the details of it, because it can be changed later when the entire Conservation Regulation is revised and updated. But can we really reduce setbacks later without inviting a Sierra Club lawsuit?
Their answer: It is temporary. It will take 8 or 9 months to rewrite the Conservation Regulations, but they don't expect any setbacks to be reduced, so this won't be an issue. The Program EIR that must be prepared soon, as part of the re-write, will not result in any smaller setbacks.
14. It is hard to see any scientific justification for the replant exemption. Was this granted mainly for political considerations, to get the agricultural groups to support the ordinance?
Their answer: No. Note: This answer is so blatantly false and they uttered it with such apparent sincerity that it sheds considerable doubt on their credibility and the reliability of any of their other answers. - GB